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IN THE HIGH COURT OF SOUTH AFRICA BOPHUTHATSWANA PROVINCIAL DIVISION

CA NO.: 86/08

In the matter between: THE STATE

and

KAGISO GILBERT MOTLHABANE

SHIMENE JOHANNES MOENG

JAPHTA MOTLHABANE

OBAKENG DONALD MOTLHABANE

REVIEW JUDGMENT

KGOELE AJ:

1. This matter appeared before the presiding officer Mr Khuduge. On the 27 March 2007 the complainant gave evidence and the matter was postponed to the 20^th April 2007 for further evidence. The matter was thereafter postponed on numerous occasions for various reasons.

2. On the 31^st March 2008, the presiding officer recused himself as he felt he was at that time in a position that he could not give an entirely unbiased judgment in the matter. His reasons were as follows:

"When the case was postponed on numerous occasions, the writer (referring to himself) had some encounters with accused 2. This emanated from the proceedings on the 27^th March 2007 when the writer asked accused 2 to bring forward a horn that he produced prior to cross-examining the complainant. In this regard See Page 19 line 7- 10 and Page 20 lines 12-13. The numerous encounters with accused 2 were regarding his knowledge of herbs. The writer then became acquainted with accused 2 to such a stage that considering the writer's oath of office, the writer's impartiality was now at stake towards accused 2 and other accused. The writer was bona fide and found that the recusal was warranted and the writer made his decision known to recuse himself to Mr Mokoka who was standing on behalf of Mr Mogale and accused 2's legal representative Mr. Mafejane on the 3P March 2008."

3. In the Appellate Division case of S v Suliman 1969 (2) SA the following was held:

"When a trial Judge bona fide, albeit mistaken and on objectively inadequate grounds, recuses himself from continuing with a criminal trial, he commits no irregularity amounting to a failure of justice, even though such recusal occasions expense and inconvenience to the accused concerned."

4. Often the request for recusal is addressed to the judicial officer by one or other of the parties, or sometimes by both of them, but occasionally a judicial officer may without any such prior request, recuse himself. In such a case the judicial officer is intimating that for some reason or the other, he fears that he is incapable of impartially adjudicating in a matter upon which he is about to embark or with which he is already seized.

8. There is also in our law a "duty" upon all judicial officers to sit and hear all the cases that appear before him/her. Manifestestly there should exist objectively sounds reasons why a judicial officer should, in the absence of any request from either party, recuse himself. But, I am of the view that, in as much as the criterion is that of impeccable impartiality, much must inevitability be left to the discretion of the individual judicial officer concerned.

9. I therefore align myself with the further remarks made by the honourable Judge Ogilivie Thompson in the Suliman case that:

"It accordingly appears to me that, if a Judge presiding in a criminal trial bona fide recuses himself during the trial upon what he conceives to be sufficient grounds, this Court, even if it does not share the trial Judge's view that recusation was in the circumstances necessary, should be very slow indeed to hold that such recusation constitutes an irregularity."

7. Unfortunately I cannot agree with the request by the presiding officer that we
should honour agreements (Partum Honorarium) of the prosecution and the
defence counsels which is to place the record of the evidence that has been
adduced before the second judicial officer to determine the case on the evidence
so adduced and any additional evidence that will be presented to such judicial
officer. Despite the inconvenience that will be cause or has already been
occasioned by his recusal, this procedure suggested by him cannot be followed.

8. In as much as the bona fides of Mr Khuduga, the presiding officer has not been questioned by any party, I accordingly come to the conclusion that as the presiding officer has already recused himself, he is now functus officio. The matter should start de novo and proceed before another presiding officer.

9. Consequently the following order is made:

9.1 The matter is referred back to start de novo before another presiding officer.

A M KGOELE

ACTING JUDGE OF THE HIGH COURT

I agree

R D HENDRICKS

JUDGE OF THE HIGH COURT

DATED 30 OCTOBER 2008

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